Your Right to Remain Silent in Massachusetts

The right to remain silent is the most valuable protection a person has when they are stopped, questioned, or arrested, and it is the one most often given away in the first five minutes of contact with the police. Almost every damaging statement in a criminal case is made voluntarily, before any arrest, by a person who believed they could talk their way out of the situation. In Massachusetts that right is guaranteed twice over, by the Fifth Amendment to the United States Constitution and, more broadly, by Article 12 of the Massachusetts Declaration of Rights. Serpa Law Office has spent thirty years suppressing statements taken in violation of those protections and teaching clients the one rule that protects them: say nothing about the case, and ask for a lawyer. This page explains how the right works, how to invoke it, where Massachusetts protects you more than federal law, and the settings, from a police cruiser to a restraining-order hearing, where the rules quietly change.

Two Constitutions, and Why Article 12 Matters More

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against themselves. Article 12 provides that no person shall be compelled to “accuse or furnish evidence against himself.” The Supreme Judicial Court has repeatedly held that Article 12 affords broader protection than its federal counterpart in several settings that decide real cases: pre-arrest silence, the fruits of an un-warned interrogation, the duty to tell a suspect a lawyer has called, and the compelled decryption of a phone. When state and federal protections diverge, the defense raises the Article 12 ground independently, and it must be raised expressly to be preserved for appeal. The places where Massachusetts protects you more are noted throughout, because those are the places where cases are won. The privilege also applies in civil proceedings, 209A hearings, DCF interviews, depositions, and licensing board investigations, where silence carries different costs; see The Fifth Amendment in Civil Cases.

How to Invoke the Right: Silence Is Not Enough

The most important practical rule is that the right must be invoked clearly and out loud. Simply staying quiet does not, by itself, trigger the full protection during police questioning. Under Berghuis v. Thompkins, 560 U.S. 370 (2010), a suspect who wishes to rely on the right must unambiguously assert it; sitting silent through an interrogation is not an invocation. The correct words are simple and should be delivered once, calmly, and then not elaborated on:

“I am invoking my right to remain silent. I want to speak with a lawyer before answering any questions.”

After that sentence, say nothing further about the case. Do not explain why you are invoking your rights. Do not argue with the officer. Do not answer “just one more question.” The invocation works only if you then remain silent, and every additional sentence risks undoing it.

Once You Ask for a Lawyer, Questioning Must Stop

Invoking counsel is not a suggestion the police may talk you out of. Once a person in custody clearly requests a lawyer, all interrogation must cease and may not resume until counsel has been made available, unless the person themselves reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477 (1981). Statements the police extract after you have asked for a lawyer, by continuing to question you or by wearing you down, are subject to suppression. This is why the request for counsel should be explicit and why nothing should be said after it.

What You Must Provide, and What You Never Have To

The right to remain silent is not a right to obstruct. At a motor vehicle stop you must provide your license and registration, and in some encounters you must identify yourself. Complying with those requirements is not a waiver of anything. Everything beyond that identification, every question about where you were coming from, what you had to drink, what happened, is investigative, and you are not required to answer any of it. The most damaging statements in OUI cases are made at the roadside before any arrest: “I only had two beers,” “I’m coming from a bar,” “I took something earlier.” Each is admissible at trial, and none was required. The correct response to any investigative question is a polite version of the invocation above. For what police may and may not do at the stop itself, see Massachusetts Traffic Stops, Exit Orders, and Pretext Searches and the Massachusetts Traffic Stop FAQs.

What Silence Does Not Cover: Physical Evidence

It is important to understand the limit of the privilege, because it prevents costly mistakes in both directions. The privilege against self-incrimination protects testimonial evidence, communications that reveal the contents of your mind. It does not protect physical or real evidence. A person can be required to appear in a lineup, to provide fingerprints or a handwriting or voice exemplar, and, in the OUI context, breath and field sobriety tests have been treated as physical rather than testimonial, so they are not shielded by the privilege. Commonwealth v. Brennan, 386 Mass. 772 (1982). This is why the passcode question, discussed below, is different: entering a passcode draws on the contents of your mind and is testimonial, while a fingerprint is not. Knowing which is which is part of knowing when you may decline and when declining will not help.

Miranda and Custodial Interrogation

The Miranda warnings are required before a custodial interrogation, that is, questioning of a person who is in custody. Miranda v. Arizona, 384 U.S. 436 (1966). Custody does not require a formal arrest; it exists whenever a reasonable person in the suspect’s position would not feel free to leave, which can include questioning in the back of a cruiser, at a station house, or in some scene encounters before the words “you are under arrest” are spoken. When police conduct a custodial interrogation without the warnings, the remedy is not dismissal of the charge. It is suppression of the statements through a motion to suppress: the case continues, but the Commonwealth cannot use what you said. The reverse is where people hurt themselves most: statements made when you are not in custody, at a traffic stop or in a voluntary conversation, generally require no warnings and come in fully.

The Booking and Public-Safety Exceptions

Two narrow exceptions are worth knowing. Routine booking questions, name, address, date of birth, asked to process an arrest are generally exempt from Miranda, so answering them does not open the door to interrogation and refusing them accomplishes nothing. Pennsylvania v. Muniz, 496 U.S. 582 (1990). And where there is an immediate threat to public safety, an officer may ask a limited question, such as the location of a weapon, before giving the warnings. New York v. Quarles, 467 U.S. 649 (1984). Both exceptions are narrow and often overstated by the police; questioning that goes beyond booking logistics or a genuine emergency is still interrogation. Statements about a phone’s ownership or passcode carry special weight, because they can enable compelled decryption; see Phone, Computer, and Digital Device Searches in Massachusetts.

Voluntariness and the Massachusetts Humane Practice

Even a warned statement is inadmissible if it was not voluntary. Massachusetts follows the “humane practice,” under which, once voluntariness is genuinely in issue, the Commonwealth must prove beyond a reasonable doubt that the statement was voluntary, and the jury is instructed to disregard it unless they too find it voluntary beyond a reasonable doubt. Commonwealth v. Tavares, 385 Mass. 140 (1982). This is more protective than the federal preponderance standard. A person’s age, intelligence, intoxication, mental impairment, and experience with police all bear on voluntariness. Massachusetts adds a further safeguard: under Commonwealth v. DiGiambattista, 442 Mass. 423 (2004), when the Commonwealth introduces a statement from a custodial interrogation that was not recorded, the defendant is entitled on request to a cautionary jury instruction that the SJC prefers such interrogations be recorded and that the jury should weigh an unrecorded statement with particular care.

Where Massachusetts Protects You More: Pre-Arrest Silence

Under federal law a defendant’s silence before arrest can, in some circumstances, be used against them. Jenkins v. Anderson, 447 U.S. 231 (1980). Massachusetts rejects that approach. The SJC has long held that a person who has not been arrested has no duty to come forward, and that their pre-arrest silence cannot be used as evidence of guilt or to impeach their testimony. Commonwealth v. Nickerson, 386 Mass. 54 (1982). The Appeals Court reaffirmed the principle in Commonwealth v. Irwin, 72 Mass. App. Ct. 643 (2008), holding that use of a defendant’s pre-arrest silence as consciousness of guilt was an impermissible comment on the privilege and required a new trial. See also Commonwealth v. Bouchett, 407 Mass. 408 (1990). The protection is broad enough that even indirect comment can cross the line: a prosecutor’s suggestion that the Commonwealth’s account stands uncontradicted can be improper, and counsel must object at once. Your decision to say nothing at the scene, before any arrest, cannot be turned into evidence against you in a Massachusetts courtroom.

Where Massachusetts Protects You More: The Fruits of an Un-Warned Statement

Federal law permits the government, in some situations, to use physical evidence discovered as a result of an un-warned but voluntary statement. Massachusetts does not. Under Commonwealth v. Martin, 444 Mass. 213 (2005), Article 12 requires the exclusion of the physical fruits of a statement obtained in violation of Miranda, because the narrower federal rule was inadequate to protect the broader state right. An un-Mirandized statement can therefore taint not just the words but the weapon, the drugs, or the other evidence the words led police to, a significantly more powerful suppression tool than federal law provides.

Where Massachusetts Protects You More: The Right to Know a Lawyer Called

Massachusetts imposes a duty on the police that federal law does not. Under Commonwealth v. Mavredakis, 430 Mass. 848 (2000), when an attorney contacts the police station and asks to reach a suspect being held, the police must promptly inform the suspect of that call. A waiver of the right to counsel that follows a failure to pass along the message is not knowing and voluntary, and the resulting statement can be suppressed. This is why a family member’s first move after an arrest should be to call a defense lawyer immediately: a lawyer’s call to the station is not a formality, it is a legal event that can protect the person in custody.

Juveniles: The Interested-Adult Rule

Massachusetts protects young people more than the Constitution requires. Beyond the ordinary Miranda warnings, the SJC has adopted an “interested adult” rule for juveniles, recognizing that children frequently lack the capacity to appreciate the consequences of waiving their rights. Commonwealth v. A Juvenile, 389 Mass. 128 (1983). For a juvenile who has turned fourteen, the police must provide a genuine opportunity for a meaningful consultation with a parent, an interested adult, or an attorney before a valid waiver can occur. For a juvenile under fourteen, no waiver is valid unless an interested adult was present and consulted. The interested adult must themselves understand the warnings and be free of any conflicting interest in the case; a parent who does not grasp the rights, or who is a co-participant, does not qualify. The rule now reaches every person under eighteen. Commonwealth v. Smith (2015). Because so many student and young-adult cases turn on a statement given at a police station without a parent who understood what was happening, this rule is frequently the heart of the defense of a young client.

The Phone Passcode Question

When police seize a phone they frequently ask for the passcode, and providing it is not like handing over a key. Entering or disclosing a passcode is a testimonial act, because it draws on the contents of your mind, and it is protected by the Fifth Amendment and Article 12. The government can compel decryption only under the narrow “foregone conclusion” exception, and Massachusetts applies that exception more strictly than federal law. Under Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), and Commonwealth v. Jones, 481 Mass. 540 (2019), before a court may order you to enter a password the Commonwealth must prove beyond a reasonable doubt that you know it. A police officer’s request in the field is not a court order and carries no penalty for declining. Decline, require law enforcement to seek judicial authorization, and do so only after speaking with counsel. Note the contrast with the physical-evidence rule above: a memorized passcode is testimonial and protected, while biometric unlocking by fingerprint or face scan has often been treated as a physical act and may carry less protection, which is a practical reason to disable it. See Your Fifth Amendment Right to Refuse a Passcode and Digital Search Warrants in Massachusetts.

The Right Not to Testify at Trial

The right to remain silent continues through trial. A defendant cannot be compelled to take the stand, and the choice not to testify cannot be used against them; the judge instructs the jury that they may draw no adverse inference from that decision. Griffin v. California, 380 U.S. 609 (1965). A prosecutor’s comment that draws attention to the defendant’s failure to testify is improper and can require a mistrial or curative instruction. Whether a defendant should testify is one of the most consequential decisions in a case, made with counsel based on the strength of the Commonwealth’s proof and the risks of cross-examination, never out of a feeling that an innocent person “should” explain.

The Adverse-Inference Problem: Silence in a 209A or 258E Hearing

Your silence can never be considered or used against you in your criminal case. The jury hears nothing of it, and no inference may be drawn from it. Griffin v. California, 380 U.S. 609 (1965). Mitchell v. United States, 526 U.S. 314 (1999). In a civil proceeding, silence has costs. A judge, civil jury or disciplinary is permitted draw an adverse inference against a party who invokes the privilege against probative evidence. Baxter v. Palmigiano, 425 U.S. 308 (1976). Massachusetts applies that rule in cases that are critical to criminal defendants. In a 209A hearing, the judge may consider a defendant’s refusal to testify as evidence adverse to that defendant. Frizado v. Frizado, 420 Mass. 592 (1995). The same logic exists in 258E hearings, civil lawsuits, and administrative proceedings. The right to remain silent is a sacred constitutional bedrock. It exists in every forum, but at a penalty. In the criminal courtroom, silence is critical and cost-free. Everywhere else, silence can lose the hearing. See The Fifth Amendment in Civil Cases for Criminal Defendants: When Silence Protects You and When It Costs You. See also Pleading the Fifth Outside the Criminal Courtroom: Where Silence Protects You and Where It Costs You.

A dangerous place where a criminal defendant’s right to silence collides with another proceeding is the restraining-order hearing, because the rule reverses. In the criminal case, no adverse inference may ever be drawn from a defendant’s decision not to testify. Griffin v. California, 380 U.S. 609 (1965). But a hearing on a 209A abuse prevention order or a 258E harassment prevention order is a civil proceeding, and in a civil case a judge is permitted to draw an adverse inference against a party who invokes the privilege against self-incrimination and declines to testify. Frizado v. Frizado, 420 Mass. 592, 596 (1995); Mass. G. Evid. § 525. The same silence that cannot be mentioned in the criminal courtroom can be weighed directly against you across the hall.

This creates a genuine dilemma with no cost-free answer. If you testify at the 209A or 258E hearing to fight the order, everything you say is under oath, on the record, and available to the prosecutor to use against you in the parallel criminal case, whether as a direct admission or to impeach you later. If you invoke your Fifth Amendment right and stay silent to protect the criminal case, the civil judge may draw an adverse inference and extend the order against you. And it makes no difference that the criminal charge is still pending; the civil court may draw the inference even while the criminal case is open. Frizado, 420 Mass. at 596.

What makes this problem especially hard is timing. In most domestic cases the 209A hearing is not a distant civil matter you can prepare for at leisure. The ten-day extension hearing routinely lands on the same day and in the same courthouse as the criminal arraignment, at the very start of the case, before your lawyer has the police report, the 911 recording, the plaintiff’s affidavit, or any discovery, and often within hours of your first meeting with counsel. You are asked to make one of the most consequential strategic decisions in the entire case, whether to testify and risk the criminal matter or stay silent and risk the order, at the exact moment you know the least about what the Commonwealth has, while the plaintiff is often ready to testify in full. There is no formula that resolves it, because the right choice depends on the strength of the plaintiff’s evidence, the seriousness of the criminal exposure, and what a restraining order would cost you: a 209A or 258E order can force you from your home, separate you from your children, require the surrender of firearms and any license to carry, and appear on background checks through the statewide registry. That decision is made with counsel looking at both cases at once, and it is precisely the wrong decision to make alone at the courthouse.

Silence Before the Grand Jury

A person who receives a target letter or a subpoena to a grand jury faces the same core decision in a higher-stakes setting. A witness may invoke the Fifth Amendment privilege on a question-by-question basis, and a target almost always should decline to testify, because grand jury testimony is given under oath, without counsel in the room, and locks in an account that can later be used to impeach or to charge. The rare exceptions are decisions for counsel. See Massachusetts Grand Jury Indictments.

The Two-System Problem for Students

Students face a distinct danger, because the right to remain silent does not operate the same way in a university disciplinary or Title IX proceeding as it does in criminal court. In the criminal case the standard is proof beyond a reasonable doubt and your silence cannot be held against you. In the campus process the standard is often a mere preponderance of the evidence, and your silence can be treated as an inference against you. A student who tries to “be honest” with an administrator to save their housing can hand the district attorney a recorded confession. The two proceedings must be coordinated so that protecting the criminal case does not sink the disciplinary one, and the reverse. See College and University Student Criminal Defense.

The Places People Forget the Right Still Applies

The right does not switch off after the roadside. Statements made during booking beyond the routine questions, on recorded jail calls, to a cellmate, or to a family member in a monitored setting are routinely used by the Commonwealth. Jail calls are recorded and reviewed, and an apologetic or explanatory call can supply the evidence a case was otherwise missing. In domestic violence cases a call to the complainant can create an entirely new charge for witness intimidation. The rule after an arrest is the same as at the roadside: say nothing about the case to anyone except your lawyer, and make no contact with a complaining witness. See What to Do in the First 24 Hours After a Massachusetts Arrest.

The Right to Remain Silent Across the Massachusetts Courts

Suppression of statements is litigated in the District Court, the Boston Municipal Court, and the Superior Court in which the case is pending. Serpa Law Office files and argues motions to suppress statements throughout Greater Boston, including the Quincy, Dedham, Cambridge, Somerville, and Woburn District Courts and the Boston Municipal Court. Because the strongest version of these motions is built on what happened in the first minutes of the encounter, the sooner counsel reconstructs the stop, the interrogation, any un-passed attorney call, and, for a young client, whether an interested adult was ever involved, the more there is to work with. For the full list of courthouses, see the courts we serve.

If you have been questioned or arrested, the most important thing you can do is stop talking about the case and call a lawyer. Call Serpa Law Office at 617.936.0201 for a free and confidential consultation. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A. Available 24 hours a day.

Related Serpa Law Office Resources

• Rights and Legal Concepts in Massachusetts Criminal Cases
• Illegal Searches and Seizures in Massachusetts
• Your Fifth Amendment Right to Refuse a Phone Passcode
• What to Do in the First 24 Hours After a Massachusetts Arrest
• Massachusetts Grand Jury Indictments
• College and University Student Criminal Defense
• Domestic Violence Defense
• OUI and Motor Vehicle Defense
• Arraignment in Massachusetts
• Massachusetts District Courts and the Boston Municipal Court
• Pleading the Fifth Outside the Criminal Courtroom